Illinois Governor Signs Senate Bill 328, Further Stacking the Deck Against Defendants in Toxic Tort Litigation, Part 1

U.S. Supreme Court Significantly Narrows General Jurisdiction

As discussed in prior blog posts, here, here and here, the Illinois legislature has gone to great lengths to encourage toxic tort lawsuit filings, allow forum shopping, and impose numerous obstacles on defendants in this litigation.  Recently, Illinois took another step in the wrong direction.  On August 15, 2025, Illinois Governor J.B. Pritzker signed into law a bill that will significantly impact businesses and almost certainly expand Illinois’ already robust toxic tort dockets.  Specifically, the Governor approved Illinois Senate Bill 328, which amends the Illinois long-arm statute (735 ILCS 5/2-209) and the Business Corporation Act.  Illinois Public Act 104-0352, as Senate Bill 328 is now known, provides that foreign business corporations consent to general jurisdiction in Illinois by taking certain actions if:  1) the lawsuit alleges injury or illness resulting from a toxic substance; and 2) at least one co-defendant is subject to specific jurisdiction under the long-arm statute.

Given this development, Baker Sterchi’s Illinois Law Blog will focus on personal jurisdiction this week.  We will begin by exploring the background leading to the enactment of PA 104-0352.  Then, we will analyze the new provisions in PA 104-0352.  Finally, we will evaluate potential defenses to raise against PA 104-0352. 

To begin, as a civil procedure refresher, there are two types of personal jurisdiction recognized in Illinois:  specific and general jurisdiction.  Specific jurisdiction is often referred to as “case-specific” and exists where the plaintiff’s cause of action arises out of or relates to the defendant’s contacts with Illinois.  By contrast, general jurisdiction is typically referred to as “all-purpose jurisdiction” because it applies to claims unrelated to the defendant’s contacts with Illinois.  Additionally, under Illinois law, defendants can waive their defense against, or consent to the exercise of, personal jurisdiction.  Tomorrow, we will examine situations giving rise to consent/waiver jurisdiction.

U.S. Supreme Court Reigns in Forum Shopping

Beginning in 2011, the United States Supreme Court issued several opinions limiting the scope of both general and specific jurisdiction.  Because of opinions like J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011); Walden v. Fiore, 571 U.S. 277 (2014); Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF R. Co. v. Tyrell, 581 U.S. 402 (2017); and Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 262 (2017), defendants were able to successfully challenge plaintiffs’ attorneys’ efforts to forum-shop.  Certainly, those opinions did not eliminate forum-shopping, but they gave defendants strong ammunition to challenge personal jurisdiction. 

Of those opinions, Daimler may be the most important when discussing PA 104-0352.  In Daimler, 22 Argentinian residents filed suit in California against Daimler, a German company that manufactured vehicles in Germany.  The plaintiffs alleged that during Argentina’s “Dirty War,” Daimler’s Argentinian subsidiary, MB Argentina, conspired to kidnap, detain, torture, and kill certain MB Argentina employees.  Specific jurisdiction clearly was inappropriate because neither the plaintiffs’ claims, nor Daimler’s alleged tortious conduct, had any connection to California. 

The plaintiffs, therefore, attempted to establish general jurisdiction.  They argued that Daimler, through an American subsidiary, maintained significant contacts with California.  For example, they cited that Daimler’s subsidiary had multiple California-based facilities and was the largest supplier of luxury vehicles to the California market.  The plaintiffs further noted that over 10 percent of all sales of new vehicles in the United States at the time occurred in California, with California accounting for 2.4 percent of Daimler’s worldwide sales.

Despite Daimler’s contacts with California, the United States Supreme Court found that general jurisdiction was inappropriate.  According to the Court, the plaintiffs were asking the Court to “approve the exercise of general jurisdiction in every state in which a corporation engages in a substantial, continuous, and systematic course of business.”  The Court deemed this proposed standard “unacceptably grasping.” 

In response to the plaintiffs’ overly broad argument, the Court clarified the standard for exercising general jurisdiction.  Specifically, only a limited set of affiliations with a forum will render a defendant subject to general jurisdiction.  For corporations, the place of incorporation and principal place of business are the “paradigm bases” for general jurisdiction.  Otherwise, there may be “an exceptional case” warranting the exercise of general jurisdiction over a foreign corporation.  The corporation, however, must maintain such extensive affiliations with the forum state that it is “essentially at home” there. 

Daimler’s Impact

The Daimler opinion had a significant impact on toxic tort litigation, which regularly involves out-of-state plaintiffs filing lawsuits in improper forums.  The opinion, characterized by some as a “watershed case”, allowed defendants to contest personal jurisdiction in cases where that defense previously was not viable.  See, Famular v. Whirlpool Corp., No. 16 CV 944 (VB), 2017 U.S. Dist. LEXIS 8265, *13 (S.D. N.Y. Jan. 19, 2017); Nicely v. PLIVA, Inc., 181 F. Supp. 3d 451, 457 (E.D. Ky. 2016).  More specifically, defendants could contest general jurisdiction in cases filed by non-resident plaintiffs whose alleged exposures and injuries occurred outside of Illinois, even if the defendants maintained significant, but non-suit-related, contacts with Illinois.  Anecdotally, Baker Sterchi saw many plaintiffs’ attorneys concede general jurisdiction in toxic tort cases involving out-of-state exposures following Daimler.  

Undeterred, plaintiffs’ attorneys focused on new avenues for establishing jurisdiction in toxic tort litigation.  One strategy involved expanding the scope of specific jurisdiction, which paid off for the plaintiffs’ bar in Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351 (2021).  As this author previously noted, however, that opinion did not open the floodgates for out-of-state residents to file suit in Illinois.